Freddie Hall: Intellectually disabled but on death row

Colombus, Ohio: Soon after his birth in 1945, Freddie Hall's family knew that something was different about him. And later, he was slow to learn, to walk and to talk, and it was challenging for his family to understand his speech. He was raised under difficult circumstances in an impoverished and abusive home, the 16th of 17 children, and showed early signs of serious intellectual and developmental delays.

Hall's elementary school teachers also noticed his problems with learning and recommended a special education teacher, as shown in school records dating from the 1950s. His fourth-grade, sixth-grade, seventh-grade and eighth-grade teachers all wrote that he was "mentally retarded." There is no indication that Hall ever received the special educational support that his teachers recommended. After being "socially promoted" through school, Hall dropped out in the 11th grade.

Freddie Lee Hall has been on death row for almost 35 years. Photo: Florida Department of Corrections

As an adult, Hall is illiterate and cannot perform basic maths. Clinicians who have conducted psychological evaluations of him have said that his functioning is comparable to that of a first-grader.

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Tragically for all concerned, Hall was involved in the murders of two people. He is now on death row in Florida. His intellectual disability - once classified as mental retardation - affected his ability to work with defence lawyers. In sworn affidavits, two lawyers relayed how much Hall's diminished capacities limited their ability to communicate with him. One wrote that he was unable to understand anything Hall said.

In 1991, a Florida trial court found that Hall had been "mentally retarded his entire life". In 2002, in its Atkins v Virginia decision, the US Supreme Court prohibited the execution of people with what was then called mental retardation.

So how is it possible that someone with Hall's lifelong history of intellectual disability could still be sitting on death row?

The answer is Florida's unusual standard for determining intellectual disability in capital cases. On March 3, the constitutionality of Florida's standard, which runs counter to the universally accepted clinical practice for making a determination of intellectual disability, will be at issue when the Supreme Court hears Hall's case.

Florida's statute is actually consistent with the clinical definitions of intellectual disability on which Atkins relied. The statute prohibits the execution of a person who has significantly sub-average intellectual functioning and concurrent deficits in adaptive functioning, both of which must be manifested before age 18. Similar criteria have been applied by clinicians to diagnose intellectual disability for more than half a century.

But in 2007, the Florida Supreme Court held that in order for an individual in a capital case to prove that he or she has intellectual disability, he or she must first establish an IQ test score of 70 or below.

Florida's rigid cutoff of an IQ test score of 70 conflicts with the accepted clinical practice that IQ test scores must be interpreted by taking into account the standard error of measurement inherent in all such tests. No IQ test is without measurement error. That means that any IQ test score is best understood as falling within a range, rather than a single exact score. Accepted clinical practice says an IQ score of 70 indicates that the person's "true" IQ score is most likely between 65 and 75.

Hall has been diagnosed with intellectual disability by multiple psychiatrists and psychologists. His IQ test scores on the "gold standard" Wechsler Adult Intelligence Scale cluster in the 65-75 range. The American Association on Intellectual and Developmental Disabilities (formerly known as the American Association on Mental Retardation) and the American Psychiatric Association recognise that range of intellectual functioning as consistent with intellectual disability.

But in Florida Hall has been denied permission to present evidence of his intellectual disability because he has obtained IQ scores slightly above 70. The Florida Supreme Court's 2007 ruling means that the state doesn't consider evidence of Hall's disability in making a determination of whether he is legally eligible for execution.

In his Supreme Court ruling, Atkins leaves discretion to the states regarding how to enforce the prohibition on executing defendants,

Intellectual disability experts argue that the Florida standard for assessing intellectual disability in death penalty cases is clinically and scientifically unjustified.

They say that, unless reversed by the Supreme Court, the standard will result in people with intellectual disability being executed, contrary to the protections provided in the Atkins ruling.